Burhala v Yeo

[2023] FCA 962

FEDERAL COURT OF AUSTRALIA

Burhala v Yeo [2023] FCA 962

File number(s):

VID 336 of 2023

Judgment of:

O'BRYAN J

Date of judgment:

14 August 2023

Date of publication of reasons:

15 August 2023

Catchwords:

 PRACTICE AND PROCEDURE – application for security for costs in respect of an application for an extension of time and leave to appeal – where applicant resides out of the jurisdiction – where applicant owns no assets in Australia – where no evidence that applicant is unable to meet adverse costs order from assets held outside Australia and where no evidence that an order for security would stultify the proceeding – application granted

Legislation:

Bankruptcy Act 1966 (Cth), ss 43, 54C, Sch 2, s 90-15

Federal Court of Australia Act 1976 (Cth), s 56

Cases cited:

Allison v Murphy [2021] FCA 1551

Bell Wholesale Co. Ltd v Gates Export Corporation (1984) 2 FCR 1

Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497

Commissioner of Taxation v Vasiliades (2016) 344 ALR 558; [2016] FCAFC 170

Cooper v Universal Music Australia Pty Ltd [2006] FCA 642

Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in liq) (No 2) [2018] FCA 612

Gentry Brothers Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

34

Date of hearing:

14 August 2023

Counsel for the Applicant:

The Applicant was self-represented

Counsel for the Respondents:

Mr P Fary SC with Mr A Silver

Solicitors for the Respondents:

McInnes Wilson Lawyers

ORDERS

VID 336 of 2023

BETWEEN:

FLORIN BURHALA

Applicant

AND:

ANDREW REGINALD YEO

First Respondent

GESS MICHAEL RAMBALDI

Second Respondent

ORDER MADE BY:	O'BRYAN J
DATE OF ORDER:	14 AUGUST 2023

THE COURT ORDERS THAT:

1.The Applicant give security for the Respondents’ costs of and incidental to the proceeding in the amount of $55,840 to be provided by payment into Court in this proceeding pursuant to r 2.42 of the Federal Court Rules2011 (Cth).

2.In the event the security for costs is not provided within 28 days of the date of these orders, the proceeding be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth).

3.The Applicant pay the costs of the Respondents of and incidental to this interlocutory application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. The applicant, Mr Burhala, is an undischarged bankrupt who resides in Romania. On 10 August 2016, under a sequestration order made by the Federal Circuit Court under s 43 of the Bankruptcy Act 1966 (Cth) (Act), Mr Burhala became bankrupt on a creditor’s petition issued on behalf of the Deputy Commissioner of Taxation. The respondents (Trustees) were appointed as the joint and several trustees of Mr Burhala’s bankrupt estate.

2. The evidence discloses that Mr…